Background on the Medicaid Program: Requirements/Restrictions

Background on the Medicaid Program: Requirements/Restrictions August 17, 2005 Charles Milligan, JD, MPH Presentation to the Medicaid Commission

Road Map • The Medicaid State Plan • Flexibility under the State Plan • Section 1115 waivers • Is there a problem that requires statutory “reform” (or, why isn’t an 1115 waiver enough)? • What kinds of challenges in Medicaid cannot be completely resolved by reforming just Medicaid?

The Medicaid State Plan

A Medicaid “state plan” is best understood as a contract between a state and the federal government . . . • Title XIX is based on a contract which is called the approved “state plan”: in exchange for federal funds, the state will operate its Medicaid program in accord with the state plan requirements in 42 USC Section 1396a et. seq. • The federal government exercises oversight to ensure the state is meeting its end of the bargain in exchange for the federal funds • Recent court decisions suggest that the overall terms of the state plan are enforceable by a state or the federal government against each other, but not in federal court by a Medicaid provider or Medicaid beneficiary

. . . that represents one attempt to balance state “flexibility” with a baseline “national” program . . . • Title XIX should be understood as one attempt at balance in the federalism debate: certain things are mandatory (to create a national program), and certain things are discretionary to the states and to HHS (to allow variation across the states) • A key issue for the Medicaid Commission will be to consider where it thinks this balance should be

. . . where some elements are mandatory “boilerplate” for a state, such as . . . • Coverage of mandatory eligibility groups • Coverage of mandatory benefits • Paying proscribed provider rates to FQHCs and IHS • “Statewideness” • “Comparability”

. . . and where other elements are discretionary for a state. • Optional eligibility groups • Optional benefits • Most private provider rates

“Flexibility”under the State Plan

Domains to be discussed • Eligibility • Benefits • Provider rates • Beneficiary cost sharing • Utilization control This discussion addresses state flexibility in the absence of a waiver

State flexibility in eligibility • Whether to cover an optional eligibility group and, if so, up to what income level • Whether to be less restrictive in how certain income and assets are counted (for some eligibility groups)

For example, a state can select optional coverage for children (to age 6) between 133%-185% Medicaid Eligibility for Children (to age 6) and Pregnant Women Percent of Federal Poverty Level

State flexibility in benefits • Whether to cover an optional benefit at all • Yet, an optional benefit may become mandatory for children because of the requirement of “early and periodic screening, diagnosis and treatment” (EPSDT) • And, if so, the “amount, duration and scope” of the benefit

For example, North Carolina limited adult prescriptions Source: Lewin Group analysis of North Carolina Medicaid Data, CY 00

State flexibility in provider rates • States have significant flexibility in setting most private provider rates (as long as the rates provide access to the covered benefit). • But CMS increasingly is unwilling to approve state plan amendments regarding payments to public providers (as CMS interprets what constitutes state and local matching funds, and what is necessary for the efficient administration of the Medicaid program).

State flexibility in setting private physician fees leads to great variation around the country.

Yet, pressure is increasing on Medicaid provider rates . . . State Medicaid Program Providers • Cannot cost shift onto Medicare or private insurance (due to “prudent purchasing” by these purchasers) • Increase in Medicaid enrollment/patient load heightens the importance of Medicaid rates • Providers: “social mission diluted by Medicaid expansions”

. . . and CMS’s concerns about payments to public providers is the basis for current Administration budget proposals • Upper payment limit • Intergovernmental transfers • Targeted case management • Cap on administrative expenditures

State flexibility in beneficiary cost sharing • Under the statute, cost sharing must be: • “Nominal” • Not imposed on services used by certain eligibility groups (e.g., pregnant women; children; people in institutions) • Cannot be enforced if the effect would be to deny a service • Under regulations issued by then-HCFA in the early 80’s: • Copays cannot exceed $3 per service • Premiums cannot exceed $19/mo. per family

State flexibility in utilization control • States may impose prior authorization requirements in an attempt to avoid unnecessary care

State flexibility in utilization control: potential savings by prior authorizing of certain drugs in North Carolina Source: Lewin analysis of North Carolina Medicaid Data, CY 00

Section 1115 Waivers

An 1115 demonstration waiver permits the Secretary to waive otherwise required elements of the state plan • An 1115 waiver specifically allows waiver of the terms of 42 USC Section 1396a (“Section 1902”) • Must be budget neutral (cannot cost the federal government more money than the status quo) • Theoretically, this governs many key elements. E.g.: • Mandatory eligibility groups • Mandatory benefits • Delivery system/managed care

. . . but many areas are not “waiveable” by the Secretary under the law (since they aren’t in Section 1902) . . . • FMAP rates • Minimum level of Rx rebates • Prohibition on charging copayments for services by pregnant women, kids, others • Spousal impoverishment protections • Estate recovery • Payment rates to FQHCs and IHS • Obligation to conduct third party liability

. . . and others have not been considered “waiveable” under longstanding policy from HHS. • Provision of mandatory benefits to mandatory populations • Entitlement nature of program for mandatory populations (i.e., the prohibition of an enrollment cap for these groups) This reflects a view about federalism

Is there a problem that requires “reform” (or, why isn’t an 1115 waiver enough)?

Potential problem no. 1 • Components of Medicaid law that are not “waiveable” by the Secretary • This type of reform might be desired by both the Governors and HHS. • Examples: Minimum level of Rx rebates; spousal impoverishment rules

Potential problem no. 2 • Components of Medicaid law that are “waiveable”, but the Secretary might be reluctant to waive them • This type of reform might be desired by one or more Governors, but not necessarily by HHS. • Examples: Enrollment cap on eligibility groups; guarantee of EPSDT services for mandatory children; higher copayment levels for non-pregnant adults.

Potential problem no. 3 • Components of Medicaid law that are “waiveable”, but there is distrust about which states get approved waivers, and which states do not. • Potential goals: Equity and predictability • Examples: methodologies to achieve budget neutrality are allowed in some states, but not in others.

Potential problem no. 4 • The statute may be fine – but certain stakeholders want reform of the HHS regulations (i.e., they want to override the regulations by a statutory change) • This type of reform might reflect a view by some Governors that HHS will not voluntarily pursue a regulatory change • Example: raising the permissible copayment and premium levels (i.e., redefining what “nominal” means)

What kinds of challenges in Medicaid cannot be completely resolved by reforming just Medicaid?

What kinds of challenges cannot be completely resolved by reforming just Medicaid? • Enrollment growth related to substitution of coverage • Costs related to dual eligibles • Medicaid’s institutional bias

Substitution: coverage for the non-elderly (age 0-64) has migrated into Medicaid/SCHIP since the 1997 BBA Source:HSC Community Tracking Study Household Survey, Tracking Report No. 94 (August 2004)

From 1997-2001, children (ages 0-18) in families below 200% FPL dramatically migrated into Medicaid and SCHIP . . . x, y are not equal due to rounding. • Source: UMBC analysis of HSC Community Tracking Study Household Survey, Tracking Report No. 4 (August 2002)

. . . and from 2001 to 2003, the non-elderly (age 0-64) in working families below 200% FPL also migrated into Medicaid and SCHIP • Source: UMBC analysis of HSC Community Tracking Study Household Survey, Tracking Report No. 94 (August 2004)

NursingFacility Dual Eligibles: Medicare serves as a gateway to Medicaid MedicareBenefits MedicaidBenefits Inpatient Hospital InpatientHospital Medicaid- Covered Outpatient Services Physician

Medicare access to a Medicaid outpatient service: pharmacy case study • In FY 04, Maryland had 3,147 dual eligibles in two home and community-based waivers. The top 10 Rx:

Rx use by dual eligibles, example continued • These 3,147 beneficiaries: • Received a total of 218,954 prescriptions in FY 04 (an average of 69.6 each); • Received 1,630 unduplicated medications; and • 399 separate medications were received by only ONE beneficiary each

Initially, Medicare MedicareBenefits NursingFacility InpatientHospital Dual eligibles: most nursing home residents enter from a hospital, with Medicare paying the bill Hospital 65.4% of all nursing home admissions come from a hospital. Source: The National Nursing Home Survey: 1999 Summary

Other Medicare decisions impact Medicaid • Cost sharing levels in Medicare (e.g. Medicare Part B premiums) • Utilization review decisions governing overlapping benefits • Skilled nursing • Home health • DME

Home Health$2.8 Billion Personal Care$5.5 Billion 3% 7% HCBS Waiver$16.4 Billion 20% 57% 13% Nursing Home$46.5 Billion ICF-MR$10.4 Billion Institutional bias: Medicaid spends the majority of its long-term care dollars on institutional care… Medicaid Long-Term Care Spending, FY 2002 Total: $82.1 Billion Source: The MEDSTAT Group, Medicaid HCBS Waiver Expenditures, FY 2002

Out-of-Pocket $25.9 Billion 25% Medicaid $50.9 Billion 49% Late monthsof stay Early monthsof stay 8% Private Insurance $7.7 Billion 3% Other Private $3.5 Billion 13% 2% Medicare $12.9 Billion Other $2.3 Billion . . . although other funding sources usually cover the early months of a person’s stay . . . Sources of Payment for Nursing Home Care, 2002 Total: $103.2 Billion Source: CMS, Office of the Actuary

80% 70% Medicaid as Payor 60% 50% 40% 30% 20% 10% 0% Less than 3 months 3 monthsto less than6 months 6 monthsto less than12 months 1 year toless than3 years 3 years toless than5 years 5 yearsor more Reasons for Discharge Discharged to the Community Deceased Moved to another institution . . . thus, individuals who move to the community do so after a short stay, before Medicaid is a major payor Source: The National Nursing Home Survey: 1999 Discharge Data Summary

Conclusion • Current Medicaid law is premised on a certain balance between restrictions/requirements and flexibility for both the states and HHS • Major reform to Medicaid ultimately is a question of whether to redefine the existing balance in the federalism debate • Certain types of challenges to Medicaid cannot be completely fixed just by changing the Medicaid statute alone

Charles Milligan Executive Director, UMBC/CHPDM 410.455.6274 cmilligan@chpdm.umbc.edu www.chpdm.org

Background on the Medicaid Program: Requirements/Restrictions